15-765

15-765. Special education in rehabilitation,
corrective or other state and county supported institutions,
facilities or homes

A. For the purposes of this section and section 15-764, children with disabilities
who are being provided with special education in rehabilitation, corrective or other
state and county supported institutions or facilities are the responsibility of that
institution or facility, including children with disabilities who are not enrolled in a
residential program and who are being furnished with daily transportation. Special
education programs at the institution or facility shall conform to the conditions and
standards prescribed by the director of the division of special education.

B. Notwithstanding subsection A of this section, the department of economic
security or the department of health services may request on behalf of a school-age child
with a disability residing in a residential facility or foster home operated or supported
by the department of economic security or the department of health services that the
school district in which the facility or home is located enroll the school-age child in
the district, subject to section 15-825. The school district, on the request by the
department of economic security or the department of health services, shall enroll the
child and provide any necessary special education and related services, subject to
section 15-766. A school district in which a child with a disability is enrolled shall
coordinate the development of an individualized education program with the development of
an individual program or treatment plan. The provision of special education and related
services to a child with a disability may be subject to subsection D of this section.

C. Before any placement is made in facilities described in this section, the school
district of residence shall ensure that a full continuum of alternative placements is
available to meet the needs of children with disabilities and that the proposed placement
is the least restrictive environment in which appropriate education services can be
provided to the child.

D. A school district or county school superintendent may contract with, and make
payments to, other public or private schools, institutions and agencies approved by the
division of special education, within or without the school district or county, for the
education of and provision of services to children with disabilities if section 15-766
and the conditions and standards prescribed by the division of special education have
been met and if unable to provide satisfactory education and services through its own
facilities and personnel in accordance with the rules prescribed by the state board of
education as provided in section 15-213. No school district may contract or make
payments under the authority of this section or section 15-764 or any other provisions of
law for the residential or educational costs of placement of children with disabilities
in an approved private special education school, institution or agency unless the
children are evaluated and placed by a school district. The following special provisions
apply in order to qualify for the group B ED-P weight:

1. If the child is placed in a private special education program, the chief
administrative official of the school district or county or other person designated by
the school district or county as responsible for special education shall verify that the
pupil is diagnosed with an emotional disability as defined in section 15-761, that no
appropriate program exists within the school district or county, as applicable, and that
no program can feasibly be instituted by the school district or county, as applicable.

2. If the child is placed in a special program that provides intensive services
within a school district, the chief administrative official of the school district or
county or other person as designated by the school district or county as responsible for
special education shall verify that the pupil placed in such a program is diagnosed with
an emotional disability as defined in section 15-761 and that appropriate services cannot
be provided in traditional resource and self-contained special education classes.

E. When a state placing agency initially places a pupil in a private residential
facility, the home school district must conduct an evaluation pursuant to section 15-766
or review the educational placement of a pupil who has previously been determined
eligible for special education services. The school district shall notify the
appropriate state placing agency when a child requires an evaluation for possible receipt
of services provided by that agency or a residential special education placement. The
school district and the state agency shall jointly evaluate the child, including
consideration of relevant information from additional sources, including probation or
parole officers, caseworkers, guardians ad litem and court appointed special advocates.

F. If the child is not eligible for special education or does not require
residential special education placement, sections 15-1182 and 15-1183 apply.

G. If the individualized education program team determines that a residential
special education placement is the least restrictive environment in which an appropriate
educational program can be provided, the home school district shall submit the following
documentation to the department of education:

1. A residential special education voucher application signed by designated
representatives of the state placing agency, as defined in section 15-1181, and the home
school district, respectively.

2. The educational reasons for recommending the residential special education
placement, including an evaluation or addendum to the evaluation that describes the
instructional and behavioral interventions that were previously attempted and the
educational reasons for recommending the residential special education placement,
including documentation that the nature or severity of the disability is such that
education in a less restrictive environment is not appropriate.

3. Exit criteria as required in subsection K of this section.

4. That prior written notice for a change in the child's placement was provided.

H. If a residential special education placement is required by the child's
individualized education program, the educational component of the residential facility
shall be one that is approved by the department of education for the specific special
education services required.

I. The residential component of the facility in which the residential special
education placement is made shall be licensed by the department of economic security or
the department of health services, whichever is appropriate.

J. Following and in accordance with the consensus decision of the individualized
education program team as prescribed in section 15-766, a residential special education
placement shall be made by the school district and the appropriate state agency. The
individualized education program team shall determine whether a residential special
education placement is necessary. The state placing agency shall consider the
recommendations of the individualized education program team in selecting the specific
residential facility. The department of education shall enter into interagency services
agreements with the department of economic security or the department of health services
to establish a mechanism for resolving disputes if the school district and the department
of economic security or the department of health services cannot mutually agree on the
specific residential placement to be made. Dispute resolution procedures may not be used
to deny or delay residential special education placement.

K. The individualized education program for any child who requires residential
special education placement must include exit criteria that indicate when the educational
placement of the child shall be reviewed to determine whether the child can be moved to a
less restrictive placement.

L. All noneducational and nonmedical costs incurred by the placement of a child
with a disability in a private or public school program and concurrent out-of-home care
program shall be paid by the department of economic security for those children eligible
to receive services through the division of developmental disabilities or the
administration for children, youth and families of the department of economic security
and by the department of health services for those children eligible to receive services
through the division of behavioral health in the department of health services or
children's rehabilitation services. Nothing in this section is intended to prevent or
limit the department of health services and the department of economic security from
joint case management of any child who qualifies for services from both agencies or from
sharing the noneducational costs of providing those services. The educational costs
incurred by the placement of a child with a disability in an out-of-home care facility
shall be paid as follows:

1. Through a residential special education placement voucher as provided in section
15-1184 if the child is determined to require a residential special education placement
as defined in section 15-761.

2. Through an initial or continuing residential education voucher if a child is
placed in a private residential facility by a state placing agency, as defined in section
15-1181, for care, treatment and safety reasons and the child needs educational services
while in that placement.

3. Through a certificate of educational convenience if the child is attending a
public school not within the child's school district of residence as provided in section
15-825.

4. By the home school district, pursuant to a contract with a public or private
school as provided in subsection D of this section, if the home school district is unable
to provide satisfactory education and services through its own facilities and personnel.

M. The department of economic security or the department of health services,
whichever is appropriate, shall determine if the child placed for purposes of special
education in a private or public school and concurrent out-of-home care is covered by an
insurance policy that provides for inpatient or outpatient child or adolescent
psychiatric treatment. The appropriate state agency may only pay charges for treatment
costs that are not covered by an insurance policy. Notwithstanding any other law, the
appropriate state agency may pay for placement costs of the child before the verification
of applicable insurance coverage. On the depletion of insurance benefits, the
appropriate state agency shall resume payment for all noneducational and nonmedical costs
incurred in the treatment of the child. The appropriate state agency may request the
child's family to contribute a voluntary amount toward the noneducational and nonmedical
costs incurred as a result of residential placement of the child. The amount that the
appropriate state agency requests the child's family to contribute shall be based on
guidelines in the rules of the appropriate state agency governing the determination of
contributions by parents and estates. Nothing in this subsection shall be construed to
require parents to incur any costs for required special education and related services or
shall be construed to result in a reduction in lifetime insurance benefits available for
a child with a disability.

N. If appropriate services are offered by the school district and the parent or the
child chooses for the child to attend a private facility, either for day care or for
twenty-four hour care, neither the school district nor the respective agency is obligated
to assume the cost of the private facility. If residential twenty-four hour care is
necessitated by factors such as the child's home condition and is not related to the
special educational needs of the child, the agency responsible for the care of the child
is not required to pay any additional costs of room and board and nonmedical expenses
pursuant to this section.